Vlassis v City of Unley (No 2)nam No ERD-01-795 [2002] SAERDC 8 (7 January 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

01/11/2001 to 02/11/2001, 19/12/2001.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application to vary the size and design of approved dwelling additions - City of Unley - Residential B300 Zone - development consent refused by Council - "as varied" building additions substantially constructed - appellant neither advantaged nor disadvantaged - key issues being height, bulk, scale, streetscape impact, visual impact and privacy - assessment can properly take into account the approved dwelling additions - all relevant provisions of the Development Plan are qualitative in nature - assessment can properly take into account the height and scale expected from a complying development - Development Plan provisions leave upon a broad scope for architectural expression - assessment reveals consistency with streetscape provisions - variation of design found to be acceptable in its context - appellants offer in relation to window treatment sufficient to satisfy privacy concerns - appeal upheld - parties put submissions to the Court in relation to conditions - provisional development plan consent granted subject to 6 conditions.

• Development Act 1993 , referred to.
• Kouflidis & Jenquin Pty Ltd v. Corporation of the City of Salisbury (1982) 29 SASR 321;
• Hani & Hani v. City of Marion Judgment No.OE416;
• Ltd & Others [2001] SASC 173; (2001) 79 SASR 532, considered.

Representation

Appellant: JOANNA VLASSIS
Counsel: MR S HENRY - Solicitors: PATSOURIS & ASSOCIATES

Respondent: CITY OF UNLEY
Counsel: MS S BLENCOWE - Solicitors: SYBELLA BLENCOWE

ERD-01-795

Judgment No. [2002] SAERDC 8

7 January 2002

JOANNA VLASSIS

v.

CITY OF UNLEY

ERDC No. 795 of 2001

[2002] SAERDC 8

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. By development application dated 4 June 2001 made pursuant to the Development Act 1993, Mr P Tsoukalas applied for provisional development plan consent to vary certain aspects of an addition to the dwelling situated at 37 Foster Street, Parkside ("the subject land"). The dwelling addition to which the proposed variation applies had received consent on 31 March 2001 from the City of Unley ("the Council"). Upon receipt of the proposed variation, the Council treated the matter as a Category 1 development. Although it is not obliged to do so, the Council issued notification of the proposed variation to several owners or occupiers of dwellings in the near vicinity of the subject land. A number of responses were received and, after due consideration of the proposed variation, the Council refused consent. Its decision and the reasons for so deciding are contained in the decision notification dated 24 July 2001.

2. Mr & Mrs Vlassis, who occupy the dwelling on the subject land, were aggrieved by the Council's refusal to grant development plan consent and appealed to this Court. The applicant for consent, Mr Tsoukalas, by virtue of the development application form appears to have acted on behalf of Mr & Mrs Vlassis. In its original form, the notice of appeal is in the name of Trevor & Joanna Vlassis. Early in the hearing the appellant's name was amended to Joanna Vlassis ("the appellant"), thus reflecting the fact that Mrs Vlassis is the owner of the subject land.

3. At the hearing Mr Henry appeared for the appellant and Ms Blencowe for the Council. The Court received a number of exhibits and heard evidence from three architects - Mr Harry, Ms Vines and Mr Hall - two planning consultants - Mr Osborn and Dr Gupta - the owner of the subject land, Mrs Vlassis and Mr Sloan, an owner and occupier of the dwelling immediately adjoining the western boundary of the subject land.

4. The dwelling additions granted consent in March 2001 and the variations sought by the development application the subject of this action have, for all intents and purposes, been completed. At the commencement of the hearing the Court viewed the completed building works externally and internally, viewed the adjacent properties from within the first floor rooms and generally inspected the subject land from properties adjacent to it and from Foster Street and Blyth Street.

5. The Council alleges in an enforcement notice issued pursuant to Section 84 of the Development Act that part of the building addition, to which the development application before the Court applies, has been constructed without the necessary authorisation. The directions in the notice have been suspended pending the outcome of the appeal before me. It is established law that in the event that development for which approval is sought has been undertaken, it neither advantages nor disadvantages the appellants: Kouflidis & Jenquin Pty Ltd v. Corporation of the City of Salisbury (1982) 29 SASR 321.

The Dwelling Additions - Original (March 2001) and Proposed Variation

6. The subject land is situated on the southern side of Foster Street. It has a frontage of 18.29 metres and a depth of 48.10 metres. The dwelling situated upon the subject land is of a kind often referred to as a "villa". It is setback about 7 metres from Foster Street, about 1 metre from its nearest point to the eastern boundary and about 6 metres away from the common boundary with Mr & Mrs Sloan's land. The distance between the existing dwelling and the rear boundary of the subject land is about 17 metres.

7. Some years ago, the villa was the subject of an addition adjacent its rear wall. In a sense it is this addition that formed the platform for the March 2001 proposal and, consequently, the proposed variation.

8. The March 2001 "original plan" was tendered to the Court as Exhibit A1. This application comprised two components. The ground floor additions added about 1 metre in width to the existing family/meals/kitchen area. Substantial internal improvements were also included in this component. The second component comprised two bedrooms, rumpus room, bathroom and ancillary areas atop the family/meals/kitchen area and partially within the existing roof structure. The floor area of this component is about 58.5 square metres. The ridge height was proposed at about 7.5 metres. Dormer type extensions/windows face east and west. The rear elevation comprised a large gable and contains two windows. The nearest part of this addition is about 23 metres from Foster Street. The upper floor of the addition is about 9 metres from the Sloan's boundary and about 3.1 metres from the eastern boundary (common boundary with 35A Foster Street).

9. The Council granted provisional development plan consent subject to conditions, which consent according to Mr Osborn's statement (Exhibit A6) contained the following condition:

"That all upper floor windows be treated to avoid overlooking by being fixed with panes of fixed translucent leadlight glass, with no views through the leadlight below a level of 1.7m AFL, with such glazing to be kept in place at all times".

10. Exhibits A2 and A3 together provide a picture of the proposed changes. The essential differences are these:-

•	The floor area of the upper floor has increased from 58.5 square metres to 63.6 square metres.
•	The length of wall accommodating the bathroom and wardrobe area has increased from 2.5 metres to 3.5 metres.
•	The length of wall of the eastern dormer extension has increased from 4.6 metres to 5.1 metres.
•	The pitch of the new roof structure has increased, thereby increasing the ridge height from 7.5 metres to 8.3 metres. As a consequence, the area of the three gables has been increased.
•	The six principal windows providing light and ventilation into the upper floor are obscured to a height of 1.7 metres and utilise a bottom opening "hopper" type window hinged at mid-height of the window.

11. During the hearing Mr Henry, in effect, applied to vary the proposed development with respect to the upper floor windows. The effect of the variation is as follows:-

•	The eastern and southern windows having lower hoppers that open up a distance of 150mm (the initial proposal being 300mm).
•	The western facing windows remain fixed to a height of 1700mm - the ventilation requirements being obtained through an openable top portion about 1700mm.

12. In both cases the windows remain translucent to a height of 1700mm above floor level.

13. The plans forming Exhibit A7, on the evidence of Mrs Vlassis, indicate an intention to construct firstly, a pergola to be attached to the rear wall of the family/meals/kitchen area and secondly, a carport which is to be situated between the western boundary of the subject land and the western wall of the family/meals/kitchen area. The carport will utilise a hip/gable roof construction and will have a ridge height of approximately 4.4 metres. I will say more on the relevance of this proposal later.

14. On the evidence of Mrs Vlassis there is an intention also of replacing part of the fence adjacent the Sloan's rear yard, restore the trellis that is currently in a dilapidated condition and plant trees along the western boundary from the rear of the carport to a point in the near vicinity of the rear boundary. Mrs Vlassis indicated a preference to use tall slim conifers as the principal type of trees.

The Issues and Assessment

15. Before assessing the proposed variation against the relevant provisions of the Development Plan, the matter must be placed in its proper context. Dwelling additions of some considerable size and visual significance (when viewed from the Sloan's property and 35A Foster Street in particular) have already been approved by the Council. It is a proper course for me to take into account that which is entitled to be constructed when assessing the proposed variation. However, it is neither proper nor necessary for me to determine whether that which is already approved by the Council is at variance with the Development Plan (Hani & Hani v. City of Marion Judgment No. OE416, delivered 23 May 1997).

16. As I have said, Mrs Vlassis also intends to construct a pergola and carport at the rear and to the western side of the kitchen/meals/family room respectively. For the reasons provided further on, while these additions appear to be helpful in completing the project they are not a decisive factor in my assessment.

17. The decision notification issued by the Council outlines its reasons for refusing the grant of consent. In its view, the proposed development:-

•	has excessive height, bulk, mass and is of a design which is out of character with the locality;
•	presents a negative visual impact on the neighbouring properties;
•	does not respect the local streetscape; and
•	is generally an imposing development for the locality.

18. The expert witnesses addressed most if not all of these issues in one way or another. However, Mr Sloan, in his evidence, was less concerned about the alleged impact on the streetscape. That said, he emphasised his concern about the potential for the loss of privacy arising from the view of his backyard that may be obtained mainly from the windows associated with the two new bedrooms situated on the first floor. If I understand his evidence correctly, he was less concerned with this aspect in respect of the original dwelling addition because the consent so granted by the Council carried with it an obligation to provide fixed translucent windows. Mr Sloan is also concerned about the visual impact of the proposed development from his rear yard.

19. The subject land is situated in the Residential B300 Zone and may be found on Map Un/6 of the Development Plan for the City of Unley. This zone has two objectives, both of which are relevant to this matter and which are in the following terms:-

"Objective 1: A zone primarily containing dwellings of up to two storeys."

"Objective 2: Provision for a range of dwelling types compatible in form, scale and design with the existing positive elements of the character of the area."

20. Insofar as this matter is concerned, the provisions of Zone Principle 1 and 2 are also relevant. They read as follows:-

Principles

"1 Development should be primarily for dwellings of up to two storeys compatible in form, scale and design with existing positive elements of the character of the area."

"2 Each new dwelling should have site area of not less than 300 square metres."

21. When examining the provisions of Zone Principle 5 and Table Un/1 it is clear that the proposed variation is neither a complying nor non-complying form of development and is, therefore, to be assessed against all relevant provisions of the Development Plan. When taken as a whole, the provisions of the Development Plan with respect to the issues in this matter are almost entirely qualitative in their expression. There are no specific numerical or like provisions which can be called upon for assistance. Therefore, in the absence of more specific guidance in relation to that which may constitute a building of acceptable form, scale and design and those elements of the character of the area which may be determined as "positive" (refer to Objective 1 and Principle 1), it is appropriate to have some regard to the form of a dwelling addition that would be a complying form of development.

22. By virtue of item 3 under the heading "Outbuilding and Additions to Dwelling" in Table Un/1, a ground floor dwelling addition at the rear of the Vlassis dwelling (of the dimensions already approved by the Council) having a ridge height at least as high as that proposed in this appeal would constitute a complying form of development and therefore not subject to merit consideration. It would not be unreasonable to assume such an addition could take place for such development could involve a form of construction that has a roof pitch much the same as that exhibited in the original fabric of the villa. In these circumstances, the width of the ground floor as approved, together with the aforementioned roof pitch would, as a consequence, result in a ridge line of similar height to that proposed. Using this as one basis for assessment it might be said that from a bulk and scale viewpoint, that which is proposed is not wildly out of kilter with that which could be expected in the zone. That said, there are many other matters that are to be taken into account when properly assessing the proposed variation.

23. Also for consideration in this matter are the following provisions:-

General Objectives

"Objective 5: The amenity of localities not impaired by the appearance of land, buildings and objects."

24. This objective is followed by explanatory text, the relevant part of which is in the following terms:-

"A city should be an attractive and pleasant place in which to live, as well as being healthy and convenient. If the city dweller is to enjoy looking at his/her surroundings, attention must be given to the aesthetic qualities of both natural and constructed features. The design of individual buildings should be of high standard and related to adjacent buildings. ....."

"Objective 23: Residential areas which provide a safe and attractive residential environment."

"Objective 24: Preservation and enhancement of the character and amenity of residential areas."

"Objective 28: Development of residential areas through sensitive small-scale infill."

"Objective 29: Retention and rehabilitation of existing sound and attractive housing."

General Principles

"13 Within residential zones:

.....

(d) no development should be undertaken which would impair amenity or the residential character; and ....."

"14 Buildings should be sited and designed in such a way as to provide privacy and access to sunlight for existing and proposed development. In this regard attention should be paid to:

(a) the possibilities of overlooking and overshadowing of the adjoining development;

(b) the location of windows and doors in relation to adjacent development; and

(c) the possibilities of cutting off views for adjoining development."

"16 Materials, colours and finishes used in the construction of a development should be chosen to complement those of surrounding development."

"17 All development should relate in terms of its height, scale and bulk to that appropriate for development in the subject zone and also with existing surrounding development, in particular adjoining residential development."

"54 Development in a residential zone should maintain the attractiveness of the area as a place in which to live."

"55 Residential development should be designed to express individuality and character. However, where a strong positive local character exists, new buildings should be designed to harmonise with that which is existing in terms of form, mass, scale, colours and textures of materials and landscaping."

"56 Residential buildings should be located and designed so as not to unreasonably impair privacy and access to incident solar radiation:

(a) for adjacent properties; and

(b) for each dwelling and private open space."

"57 Buildings should be designed so as not to overlook or unreasonably overshadow windows or outdoor living areas of adjacent dwellings."

"85 Landscaping of development in residential zones should:

(a) enhance residential amenity;....."

25. Having regard to the appropriate planning context, the provisions of the Development Plan, the exhibits, the oral evidence of all witnesses and that which I saw on the view I have formed the following conclusions:-

•	The impact of the proposed variation on the streetscape is to be viewed in the context of that which could be expected when the zone provisions are read as a whole, the additions that have been approved and to specific attributes and circumstances of the streetscape that exists. I acknowledge that any dwelling addition ought to be in harmony with the form, scale and design of that which exists in the locality. However, such a harmonious relationship needs to be seen in the context of Zone Objective 1 and Principles 1 and 2 which expressly encourages the construction of two-storey dwellings on sites having areas as low as 300 square metres. In these circumstances, dwellings could be expected to be juxtaposed and it would be most unusual for a two-storey dwelling or dwelling additions of similar effect not to be visually prominent in the streetscape and in relation to neighbouring dwellings. Put another way, in a zone in which relatively dense development is being contemplated, it would be unreasonable to expect the subtleties of design, scale and architectural harmony sought by the General Provisions (which apply to the whole of the Council area) to be achieved as effectively as they could in a zone contemplating less dense development (for example the Residential 560 Zone). That said the extent of a building's impact in the streetscape will also be influenced by its proximity to and relationship with the street, existing built form and landscaping.
•	Taking all of the above into consideration, I cannot agree with the evidence of Ms Vines and Dr Gupta who both took the view that the proposed variation and the existing structure generally is visually dominant and overbearing as an element in the streetscape. The structure which is approved is set well back from the road which has streetscape elements that are influenced by old villas with generally prominent roof forms and quite attractive and effective landscaping. The nearest portion of the approved structure is setback about 23 metres from the road boundary. The variation will bring forward the front wall of the upper flor to a setback distance of about 22 metres. Notwithstanding the increased height of the ridge, the presence of the structure in the Foster Street streetscape is anything but dominant or overbearing. I accept that its visibility from the front of the property at 35A Foster Street is more prominent than elsewhere in the street. However, this aspect of the existing approved structure and proposed variation (which variation from this vantage point can only be described as "minor") is visible through a narrow break in the landscaping when travelling west along Foster Street. Accordingly, those provisions of the Development Plan which could be construed as seeking built form harmony between the structures and the public realm/streetscape are adequately satisfied. In reaching this conclusion I have taken into account the fact that the proposed variation has maintained all existing and approved setbacks from side boundaries. I have also taken note of the amended roof pitch. Although the proposed variation proposes a roof pitch that is not identical with that of the roof line of the original villa, it has nonetheless brought the design of the addition more into harmony with the built form that is observable in Foster Street and which, according to Mr Hall, is more in line with the original architecture.
•	Now to the question of the impact of the proposed variation from neighbouring dwellings. For the moment I will leave aside the view from the Sloan's property. That the extension can be seen from the rear of several properties to the rear of the subject land is evident. However, the cumulative effect of the landscaping and small buildings in their rear yards and the distance (17 metres) between the nearest part of the rear wall and the rear boundary of the subject land in my view works in favour of the proposal. The major visual impact would have been established by the additions for which consent has already been granted. As I have said, the question of whether these plans are within the scope envisaged by the relevant objectives and principles which speak about encouraging development having a height, bulk, scale and appearance compatible with the surrounding development and being otherwise attractive in its setting is not for determination here. The proposed variations, when viewed from the rear of these properties and having regard to the separation distances and oblique views toward the structure, amount to a minor and acceptable addition to that which is approved. Furthermore, having viewed these properties from the first floor windows that face south I have concluded that no unreasonable overlooking will occur. In saying that I have assumed the opening of the windows along the southern wall will be restricted to that proposed (150mm) as an amendment to the proposed variation.

Furthermore, it was generally accepted that the position and nature of the eastern facing windows are not likely to impart privacy problems in respect of the dwelling at 35A Foster Street. Although one must treat letters of support for development with a deal of caution, no evidence was put to me to suggest that the letter submitted to the Council by Mrs Steinwedel (Exhibit R1 - folio 49), which letter clearly favours the proposal, is in anyway invalid.

•

The impact of the proposed variation of most significance is that which will be noted from Mr & Mrs Sloan's rear yard. The principal impacts are visual that arise from several aspects of its appearance and the potential for the intrusion of privacy. As to the question of appearance, it seems to me that the increase in the bulk and scale of the building that will arise from the proposed variation will be relatively insignificant when compared with the change to the outlook from the rear yard that would have occurred as a result of the approved addition. Somewhat unusually, although the "as built" addition has utilised colours that are characteristic of several houses in the locality (in conformity with General Principle 16), the colour is, to some extent, a contributing factor to its visual impact. Having considered all relevant factors - including the fact that the proposed changes will be viewed largely obliquely - the visual impact of the proposed variation will not be unreasonable. To some extent the abruptness of some aspects of the "as built" form will be softened with the construction of the pergola and in particular the carport as "proposed" in Exhibit A7. The latter structure will be placed in a region of the western elevation of the addition that is of most prominence and will, from some aspects of the rear yard of Mr & Mrs Sloan, provide a gradation in built form and add texture and relief to that elevation. That said, Exhibit A7 forms no part of the proposed development and is a development that has yet to be received or in anyway dealt with by the primary planning authority. It has been established that the Court may take into consideration other proposals of which it is aware: Australian Waste Pty Ltd & Another v. Compaction Application Tips Pty Ltd & Others [2001] SASC 173; (2001) 79 SASR 532. However, the circumstances in that case are a far cry from that which is now before me. In evidence, Mrs Vlassis said that she intends to apply for the necessary consents to construct the structures. I have little doubt that she will and, as I have said, if such consents are granted and implemented as proposed, the structures will have some ameliorating effect on the view from the Sloan's property. However material this may be to the assessment, the fact that these structures may be present in the future is by no means a decisive matter.

•

Although I do not think the invasion of privacy that could arise from the windows as currently constructed is serious, some loss of privacy will occur unless remedial measures are taken. In saying this I do not accept the view put to me by Ms Vines who opined that the loss of privacy is much a "perceived" problem as it is actual. Although this Court has considered the concept of "perceived amenity" on many occasions and has, at times, acknowledged that some consideration may be given to subjective views about the loss of amenity, it is cautious about the weight to be afforded to that concept. In this matter, the impact on the privacy of Mr & Mrs Sloan's rear yard is observable. It arises from the lower hopper window being capable of being opened and for views to be gained from two bedrooms. Views cannot be gained through the frosted or translucent section. To the extent necessary, the problem is able to be addressed and a solution which appears to be workable has been offered by the appellant.

26. Both Ms Vines and Mr Hall were quite critical of the proposed variation. Ms Vines appears to have also concluded that the approved plans should not have received such consent. As I have said that is not to the point. It has been approved, it is entitled to be constructed and the matter before me can properly take that fact into account. Mr Hall is also critical of the overall architectural theme of the entire addition. He considers that the proposed variation renders the building additions to be "..... unacceptably clumsy, bulky, and bland-looking structure which decreases the charm of the original [building] .....". As an exercise in architecture, there is some substance to his views and there are, no doubt, many and possibly superior solutions. However, the provisions of the Development Plan that encourage development to be harmonious with the building form in the locality leave considerable scope for architectural expression. As I have said, it is conceivable that a development of similar bulk and scale could be deemed to be a complying form of development and therefore not subject to any aesthetic or architectural assessment. Mr Harry, I think, took the correct approach with respect to the examination of the proposed development against the provisions which speak about the form and design of development being in harmony with the locality and its positive elements. He opined that dwellings in the locality were differentiated in the character and architectural styles and no single or consistent character is observable. His evidence suggests that in such circumstances, the relevant provisions of the Development Plan can be satisfied with a design approach that reflects the relevant architectural style keys that are evident. In this case those keys, he said, can be observed mainly in the pitch of the roof and the use of the roof space in the upper floor additions in preference to a conventional perimeter wall second storey addition. To the extent that positive elements of the locality can be defined, Mr Harry expressed the view that they exist in the nature of mature gardens and substantial spaces between buildings. In his view the proposed development does not compromise these features. That said, Mr Harry said that the "proposed" pergola and carport would act to lessen the visual impact of the proposed development.

27. In the end, when weighing up all considerations in the Development Plan for the Council with respect to its design element, the proposed variation is in sufficient conformity with the relevant provisions.

28. I was impressed with Mr Sloan's approach. He along with Mrs Sloan are most affected by the proposal. He genuinely, fairly and sincerely put his views to the Court. There is little doubt that his main but not only concern is associated with the loss of privacy and the bulk of the building when viewed from his rear yard.

29. With the provisions of General Principle 85 in mind, I asked Mr Sloan whether, in the event that effective landscaping existed along the common boundary, his concerns would diminish. He agreed that landscaping would help but nonetheless advised the Court that there are limitations on the extent to which landscaping can be placed along the boundary in the near vicinity of the rear wall of his dwelling. However, on close examination of the subject land, the limitations to which he referred are not so limiting as to negate the benefit of landscaping.

Conclusion

30. Having considered all that has been put before me I have concluded that the proposed variations to the dwelling addition that have been previously approved warrant the grant of provisional development plan consent. Subject to the imposition of certain conditions, which conditions would be normal in the circumstances, the proposal will be in sufficient conformity with the relevant provisions of the Development Plan. In particular, the proposed variation conforms with those provisions which speak about the preservation of the character and amenity of the locality and the height, scale and bulk of the development being compatible with and appropriate to its circumstances. I have reached this conclusion also having regard to the dwelling additions that have been approved previously by Council.

31. The conditions I have in mind are to the following effect:-

•	The maintenance of translucent windows to all rooms in the upper floor to a height of 1700mm above the floor level.
•	The western facing windows are to remain fixed (ie. un-openable) to a height of 1700mm. Ventilation openings may be placed above that height.
•	The southern and eastern facing windows may utilise the "as built" hopper style windows openable only for a distance of 150mm.
•	The establishment of suitable trees along the western boundary (from the front of the proposed carport to the rear boundary) of the subject land, which trees should be, at maturity, of sufficient height, diameter and porosity as to afford filtered views of the dwelling additions from the Sloan's rear yard. No doubt Council can provide advice as to the appropriate species.

32. There may be other conditions that Council considers appropriate in the circumstances and I invite the parties to confer on the scope of conditions and make submissions to me accordingly.

Decision

33. The appeal is upheld and provisional development plan consent is granted subject to the imposition of appropriate conditions.

34. In my judgment in respect of this appeal handed down on 22 November 2001, I upheld the appeal and granted provisional development plan consent subject to the imposition of appropriate conditions. I heard the submissions of the parties on conditions on 19 December 2001.

35. Ms Blencowe, representing the Council, tendered draft conditions for the Court's consideration (Exhibit R5). When taken together, the conditions submitted went much further in the control over privacy and overlooking than is necessary to reflect my assessment and findings in respect of that issue. I accept Mr Henry's submissions in respect of Council's draft conditions 2, 3 and 4, which submissions are generally set out in Exhibit A8.

36. Draft condition 5 of Exhibit R5 foreshadows a fence being erected on the common boundary between the subject land and the Sloan property. The inclusion of a fence in a provisional development plan consent is often necessary to add planning value to the development. However, such a condition is often fraught with difficulty since the final resolution of financial apportionment for the cost of the fence is determined in a separate jurisdiction. Although I have not found a replacement fence to be a necessary addition to the development to ensure its compliance with the provisions of the Development Plan, the transcript records the intention of Mrs Vlassis to undertake that work as a part of the overall re-development plan. The Court expects that intention to be honoured and in so doing, the Court expects that all due care be exercised in the protection and nurturing of the attractive planting that exists on the Sloan's property. In this and other respects I urge the Vlassis and Sloan families to establish a workable relationship.

37. Submissions about the timing of the compliance with certain conditions were also put to me for consideration. With respect to draft conditions 1, 2 and 3 of Exhibit R5 the parties agreed to 30 days. I can see no reason to alter that time frame. With respect to landscaping, it seems reasonable to me to allow sufficient time for the fencing and landscaping to be established simultaneously and, at the same time, enable the planting to be undertaken at an appropriate time of the year. Given the ease of watering and nurturing in these circumstances, a period of 60 days is appropriate.

38. The order of the Court is that provisional development plan consent is granted to vary the size and design of the approved dwelling additions at 37 Foster Street, Parkside (Development Application No. 090/00494/01/DA) subject to the following conditions:-

1.	Development is to take place in accordance with Development Application No. 090/00494/01/DA (inclusive of Exhibit A2) except as modified by the conditions that follow.

2.	That all upper floor windows facing south, east and west be treated by being fitted with translucent glazed panels to a height of 1700mm above floor level; such translucent glazed panels to be kept in place at all times.

3.	The western facing windows are to remain fixed (ie. unopenable) to a minimum height of 1700mm above floor level. Ventilation openings may be placed above that height.

4.	The eastern and southern facing windows may utilise hopper style bottom opening windows openable only for a maximum distance of 150mm at the base of the window.

5.	Conditions 2, 3 and 4 are to be completed within 30 days of the date of this order.

6.

Trees are to be planted and maintained in good condition at all times, to the western boundary to provide at maturity, sufficient height, diameter and porosity so as to form a continuous planting screen affording filtered views of the dwelling additions from the rear of the property at 39 Foster Street. Planting is to be completed within 60 days of the date of this order. Trees are to be selected from the following species or other species of a similar nature:- Callistemon harkness, Callistemon viminalis, Pittosporum species, Photina x fraseri, Photin glabra, Myrtus communis, Pyrus calleyana "Chanticleer", Viburmum tinus, Euonymus japonicus, Native Frangipani or Callistemon salignus planted at an appropriate distance from the boundary to avoid compromise to the fence and other landscape elements.

39. There will be an order accordingly.